2002 trial: “Not Guilty”

In June of 2001 while in public I was searched unlawfully by a group of police officers who claimed to smell cannabis. I was arrested and charged with possession of 0.7 grams of cannabis, but I contested the charge in court. In dismissing the charge, Judge Gittos set a precedent that will protect other people from being searched in similar circumstances.

Ruling Expected To Impact Police Use Of Search Without Warrant For People Alleged To Have Been Smoking Cannabis.

NORML President Chris Fowlie has been found not guilty in a landmark ruling, after being arrested for possession of cannabis, following a supposedly “random” street search in central Auckland on June 17.

Fowlie had already faced four court appearances. The trial was held Friday 8 February 2002, with Justice Gittos reserving his decision. Justice Gittos’ written judgement was delivered at 9.30am, Friday 15 February 2002, at the Auckland District Court, Albert St, Central Auckland. The ruling found the charge was not proved on the facts, and also found the search to be unreasonable and the evidence inadmissible. Read the full written decision.

Highlights of the trial

shifting the courtroom to a larger one because the first was too small to accommodate the crowd;

Const. Hoshek stating police were conducting a “sweep” of the area and searching “groups of one or more”;

Const. Pennington stating they approached Mr Fowlie because he was “looking at them” and asking Defence lawyer Peter Winter if he “had a problem with that”;

Prosecutor Christine Scott accusing Mr Fowlie of being “an activist” while tabling a copy of a Norml News article about the arrest as Exhibit number 4;

the failure of the Police to either file or disclose appropriate reports… and so much more!

Night of the Arrest

Mr Fowlie was standing on the footpath conversing with a friend, when approached by two officers from the Team Policing Unit who had just unsuccessfully been searching another person down the road. They immediately demanded to know what was in his pockets. After he refused to be searched three times, the officers then claimed they could smell cannabis. Mr Fowlie was completely straight at the time, and hadn’t had a thing to smoke. The officers invoked the Misuse of Drugs Act (s18) and performed a search. Chris was arrested and put in their wagon. The other four occupants had all been arrested for – you guessed it – possession of cannabis.

This comes at a time when the police say they do not go around looking for cannabis smokers, and when the Health Select Committee is conducting an inquiry into possible cannabis law reform. The police gave the last inquiry, in 1998, an assurance they would not target or arrest anyone commenting on cannabis law reform. Chris Fowlie had only just returned to Auckland from attending the Wellington hearings of the cannabis law reform inquiry, and heard it claimed at this inquiry that the police no longer arrest cannabis users. Apparantly they just go after the big boys, or come across it in the course of investigating other crimes! (try telling that to the twenty people given criminal records every day for cannabis)

Police offered Mr Fowlie a Diversion on the night of the arrest and again in court, but they would not withdraw the charge.

The Police Diversion scheme involves pleading guilty and accepting a punishment decided by the police in exchange for police withdrawing the charges.

Chris Fowlie refuses to accept a Diversion. “I am not a criminal or guilty of anything that should be a crime, and I was searched unreasonably and unlawfully.”

NORML President Chris Fowlie intends to fight this injustice all the way. He has the backing of a strong legal team, and several MPs including some members of the Health Select Committee who are conducting an inquiry into potential cannabis law reform.

Mr Fowlie intends to practice what he has preached to many people busted for cannabis – to roar like a lion, fill up the court system, cost as much time and money as possible, hopefully set a precedent and beat the charge too!

“I intend to fight this charge and seek justice for myself and the half of this country the law defines as criminals. My rights have been broken, including my privacy, liberty, and my right to be free from arbitrary search and seizure. They have stolen my property and held me against my wishes. There is no complainant, and where there’s no victim there should be no crime. I cannot cooperate with the prohibition on cannabis, so while I face the possibility of being jailed for up to three months for possessing this non-toxic and non-addictive natural herb, I would rather risk that than cooperate with a law that is in itself criminal.”

Media coverage

Cannabis man disputes search

New Zealand Herald, 09 February 2002

The president of a pro-cannabis organisation has pleaded not guilty to possessing cannabis and claims that police searched him unlawfully.

Norml NZ head Christopher William Fowlie, 28, appeared in the Auckland District Court yesterday.

He was arrested early last June 17 in a Karangahape Rd bus shelter.

Police said Fowlie was searched first in the shelter, and again in a side street after Constables Karl Pennington and Karen Hoshek smelled cannabis on either the defendant or his friend Carl Wanoa.

A sealed tin containing 0.7g of cannabis was found in Fowlie’s trouser pocket.

Random street searches unlawful

A judge has told the police they cannot stop people in the street and search them simply because of the way they look.

Judge Phil Gittos says such searches breach the Bill of Rights Act.

In a landmark written ruling, Judge Gittos found the police breached the act when they searched Chris Fowlie, the president of pro-cannabis organisation Norml, and arrested him for having a small amount of cannabis.

A spokeswoman for the police said last night that they would respect the judgment.

It could lead to a review of how much evidence was needed to stop and search people.

Don Mathias, an expert in criminal defence law, said the ruling was significant.

“It shows how the police are acting unreasonably when they require people to account for their presence in a public place in circumstances where there is no indication that they are doing anything unlawful.”

Green MP Nandor Tanczos, who is Fowlie’s business partner in The Hempstore Aotearoa, said the ruling was an important legal finding for civil rights in New Zealand.

“This ruling is a major challenge to the police practice of targeting and searching certain members of the public for no good reason and confirms that police in this country routinely and arbitrarily stop and search people for no reason other than how they look,” he said.

Judge Gittos said the police had no reason to suspect Fowlie and a friend were doing anything illegal when Fowlie was arrested on Karangahape Rd in Auckland at 1.30 am in June last year.

The two friends were saying goodbye after meeting for coffee when they were approached by two members of a team policing unit.

A member of the unit, Constable Karen Hoshek, told the court on February 8 that the police were engaged in a “sweep” of Karangahape Rd to speak to people “to find out what they are doing”.

She said that as she approached Fowlie she noticed a strong smell of cannabis.

Judge Gittos said the circumstances left an “uncomfortable perception” that the police were “engineering opportunities to conduct personal searches of persons minding their own business in a public street at random or on a purely speculative basis.

“It needs hardly be said that such conduct would manifestly contravene the provisions of the New Zealand Bill of Rights Act.”

The judge also criticised the police for using the smell of cannabis as the sole grounds for searching Fowlie.

The charge against Fowlie, of possessing 0.7g of cannabis, barely enough for half a joint, was dismissed.

Fowlie said the ruling was an excellent decision because it upheld the rights and freedoms of everyone, especially those stereotypes who were regularly hassled by the police.

“It will make the police job a little bit harder, but it makes them better as policemen because it means they are protecting people instead of creating situations like this.”

Random searches by police breach act, says judge

The New Plymouth Daily News, 16 Feb 2002

A JUDGE has told the police they cannot simply stop and search people in the street based on how they look — because it breaches the Bill of Rights Act.

In a landmark written ruling, Judge Phil Gittos found the police breached the bill when they searched Chris Fowlie, president of pro-cannabis organisation Norml, and arrested him for possession of a small amount of cannabis.

A spokeswoman for the police said last night that they would take on board and respect the judgment and it could lead to a review of how much evidence was needed to stop and search people.

Don Mathias, an expert in criminal defence law, said the ruling was significant. “It shows how the police are acting unreasonably when they require people to account for their presence in a public place in circumstances where there is no indication that they are doing anything unlawful.”

Green MP Nandor Tanczos, Fowlie’s business partner in The Hempstore Aotearoa, hailed the ruling as an important legal finding for civil rights.

“This ruling is a major challenge to the police practice of searching members of the public for no good reason and confirms that police routinely and arbitrarily stop and search people,” he said.

Judge Gittos said the police had no reason to suspect that Fowlie and a friend were doing anything illegal when Fowlie was arrested on Karangahape Rd, in Auckland, at 1.30am in June last year.

The two friends were approached by two members of a team policing unit.

Constable Karen Hoshek told the court on February 8 that the police were engaged in a sweep of Karangahape Rd to speak to people “to find out what they are doing”. She said that as she approached Fowlie as a matter of routine she noticed a strong smell of cannabis.

Judge Gittos said the circumstances left an uncomfortable perception that the police were engineering opportunities to conduct personal searches of persons minding their own business in a public street.

– NZPA

Status quo for usual suspects

New Zealand Herald, 18 Feb 2002

A judgment saying police should not search people because of their appearance will not affect how officers work, says the Police Association.

In a landmark written ruling, Judge Phil Gittos found the police breached the Bill of Rights when they searched Chris Fowlie, president of the National Organisation for the Reform of Marijuana Laws (Norml), and arrested him for possession of a small amount of cannabis.

Police Association president Greg O’Connor said on Saturday police did not search people because of how they looked.

“That doesn’t happen and never has been justified … You’ve got to have more grounds than the way people look to search them.”

Judge Gittos had said the police had no reason to suspect that Mr Fowlie and a friend were doing anything illegal when Mr Fowlie was arrested on Karangahape Rd in Auckland at 1.30 am on June 17.

The two friends were saying goodbye after meeting for a coffee when they were approached by two members of a team policing unit.

Constable Karen Hoshek told the court on February 8 that the police were engaged in a “sweep” of Karangahape Rd to speak to people “to find out what they are doing”.

She said that as she approached Mr Fowlie as a matter of routine, she noticed a strong smell of cannabis.

Judge Gittos said the circumstances left an “uncomfortable perception” that the police were “engineering opportunities to conduct personal searches of persons minding their own business in a public street at random or on a purely speculative basis.

“It needs hardly be said that such conduct would manifestly contravene the provisions of the New Zealand Bill of Rights Act.”

Furthermore, the judge criticised the police for using the smell of cannabis as the sole grounds for searching Mr Fowlie. The charge against Mr Fowlie, of possessing 0.7g of cannabis, barely enough for half a joint, was dismissed.

Mr O’Connor said he thought the police were justified searching Mr Fowlie.

“The reality of it is if smelling drugs doesn’t give grounds for suspecting someone’s got them, then it’s hard to imagine what does.

“However, I suspect the judgment is probably a reflection of how much [cannabis] was found more than anything else,” Mr O’Connor said.

“I suspect that the judge wouldn’t have been making the same decision had the police found a pound of cannabis on him.”

Mr O’Connor said he thought the judge’s comments would make the police job a little bit harder but would not change who they searched.

A spokeswoman for the police said on Saturday night that they would take on board and respect the judgment and it could lead to a review of how much evidence was needed to stop and search people.

Don Mathias, a criminal defence law expert, said the ruling was significant.

“It shows how the police are acting unreasonably when they require people to account for their presence in a public place in circumstances where there is no indication that they are doing anything unlawful.”

Green MP Nandor Tanczos, Fowlie’s business partner in The Hempstore Aotearoa, hailed the ruling as an important legal finding for civil rights in New Zealand.

Mr Fowlie said the ruling was an excellent decision because it upheld the rights and freedoms of everyone, especially those stereotypes who were regularly hassled by the police.

“It will make the police job a little bit harder, but it makes them better as policemen because it means they are actually protecting people instead of creating situations like this.”

– NZPA

—

Judgement ‘will not affect’ police

Otago Daily Times, 18 February 2002

Wellington: The Police Association says a judgement saying police should not search people because of their appearance will not affect how officers operate.

In a landmark written ruling, Judge Phil Gittos found the police breached the Bill of Rights when they searched Chris Fowlie, president of the National Organisation for the Reform of Marijuana Laws (Norml), and arrested him for possession of a small amount of cannabis.

Police Association president Greg O’Connor told NZPA on Saturday police did not search people because of how they looked.

“The reality is that police don’t search people because of the way they look, that doesn’t happen and never has been justified . . . You’ve got to have more grounds than the way people look to search them.”

Judge Gittos had said the police had no reason to suspect that Mr Fowlie and a friend were doing anything illegal when Mr Fowlie was arrested on Karangahape Rd in Auckland at 1.30am last June 17.

The two friends were saying goodbye after meeting for a coffee when they were approached by two members of a team policing unit.

Constable Karen Hoshek told the court on February 8 that the police were engaged in a “sweep” of Karangahape Rd to speak to people “to find out what they are doing”.

She said that as she approached Mr Fowlie as a matter of routine she noticed a strong smell of cannabis.

Judge Gittos said the circumstances left an “uncomfortable perception” that the police were “engineering opportunities to conduct personal searches of persons minding their own business in a public street at random or on a purely speculative basis.

“It needs hardly be said that such conduct would manifestly contravene the provisions of the New Zealand Bill of Rights Act.”

Furthermore, the judge criticised the police for using the smell of cannabis as the sole grounds for searching Fowlie.

The charge against Fowlie, of possessing 0.7g of cannabis, barely enough for half a joint, was dismissed.

Mr O’Connor said he thought the police were justified searching Mr Fowlie.

“The reality of it is if smelling drugs doesn’t give grounds for suspecting someone’s got them, then it’s hard to imagine what does. “However, I suspect the judgement is probably a reflection of how much [cannabis] was found more than anything else,” Mr O’Connor said.

“I suspect that the judge wouldn’t have been making the same decision had the police found a pound of cannabis on him.”

Mr O’Connor said he thought the judge’s comments would make the police’s job a little bit harder but would not change who they searched.

“It really doesn’t mean much at all – it doesn’t change anything at all.”

A spokeswoman for the police said on Friday that they would take on board and respect the judgement and it could lead to a review of how much evidence was needed to stop and search people.

Green MP Nandor Tanczos, Fowlie’s business partner in The Hempstore Aotearoa, hailed the ruling as an important legal finding for civil rights in New Zealand.

– NZPA

—

Judgment ‘doesn’t change anything’

The Timaru Herald, 18 FEB 2002

WELLINGTON — The Police Association says a judgment saying police should not search people because of their appearance will not affect how officers operate.

In a landmark written ruling, Judge Phil Gittos found the police breached the Bill of Rights when they searched Chris Fowlie, president of the National Organisation for the Reform of Marijuana Laws (Norml), and arrested him for possession of a small amount of cannabis.

Police Association president Greg O’Connor said yesterday police did not search people because of how they looked.

“The reality is that police don’t search people because of the way they look, that doesn’t happen and never has been justified … You’ve got to have more grounds than the way people look to search them.”

Judge Gittos had said the police had no reason to suspect that Mr Fowlie and a friend were doing anything illegal when Mr Fowlie was arrested on Karangahape Rd in Auckland at 1.30am last June 17.

The two friends were saying goodbye after meeting for a coffee when they were approached by two members of a team policing unit.

Constable Karen Hoshek told the court on February 8 that the police were engaged in a “sweep” of Karangahape Rd to speak to people “to find out what they are doing”.

She said that as she approached Mr Fowlie as a matter of routine she noticed a strong smell of cannabis.

Judge Gittos said the circumstances left an “uncomfortable perception” that the police were “engineering opportunities to conduct personal searches of persons minding their own business in a public street at random or on a purely speculative basis.

“It needs hardly be said that such conduct would manifestly contravene the provisions of the New Zealand Bill of Rights Act.”

Furthermore, the judge criticised the police for using the smell of cannabis as the sole grounds for searching Fowlie.

The charge against Fowlie, of possessing 0.7g of cannabis, barely enough for half a joint, was dismissed.

Mr O’Connor said he thought the police were justified searching Mr Fowlie.

“The reality of it is if smelling drugs doesn’t give grounds for suspecting someone’s got them, then it’s hard to imagine what does.

“However, I suspect the judgment is probably a reflection of how much (cannabis) was found more than anything else,” Mr O’Connor said.

“I suspect that the judge wouldn’t have been making the same decision had the police found a pound of cannabis on him.”

Mr O’Connor said he thought the judge’s comments would make the police job a little bit harder but would not change who they searched.

“It really doesn’t mean much at all — it doesn’t change anything at all.”

A spokeswoman for the police said last night that they would take on board and respect the judgment and it could lead to a review of how much evidence was needed to stop and search people.

Don Mathias, an expert in criminal defence law, said the ruling was significant.

Green MP Nandor Tanczos, Fowlie’s business partner in The Hempstore Aotearoa, hailed the ruling as an important legal finding for civil rights in New Zealand.

“This ruling is a major challenge to the police practice of targeting and searching certain members of the public for no good reason and confirms that police in this country routinely and arbitrarily stop and search people for no reason other than how they look,” he said.